¶1dissenting:
¶2I disagree with the majority’s assertion that Cloutier cannot raise an ineffective assistance of counsel claim in this proceeding based on the advice he received from his attorney to plead guilty in the Cooney case. The Post-Conviction Hearing Act, upon which my colleagues rely, provides that circumstances, it was inextricably linked to the present matter because it provided one of the predicates for Cloutier’s eligibility for the death penalty. As such, it was part of the “proceedings” which resulted in the judgment challenged by Cloutier here. Accordingly, defense counsel’s recommendation to plead guilty in the Cooney matter was a proper subject for Cloutier’s post-conviction challenge to his death sentence in this case.
“[a]ny person imprisoned in the penitentiary who asserts that in the proceedings which resulted in his [or her] conviction there was a substantial denial of his or her rights under the Constitution of the United States or of the State of Illinois or both may institute a proceeding under this Article.” 725 ILCS 5/122 — 1(a) (West 1996). Although the Cooney case involved a separate set of
¶3Having reached this conclusion, I nevertheless do not feel it necessary to resolve whether Cloutier’s attorney did, in fact, provide ineffective assistance. Regardless of counsel’s performance, Cloutier’s sentence of death cannot be allowed to stand. For the reasons set forth in my partial concurrence and partial dissent in People v. Bull, 185 Ill. 2d 179 (1998), the Illinois death penalty law violates the eighth and fourteenth amendments to the United States Constitution (U.S. Const., amends. VIII, XTV) and article I, section 2, of the Illinois Constitution (Ill. Const. 1970, art. I, § 2). Cloutier’s sentence of death should therefore be vacated and he should be sentenced to a term of imprisonment. 720 ILCS 5/9 — l(j) (West 1994).